What is the Tort of Harassment?

I am often contacted by individuals who tell me that they have been subjected to harassment. In some cases, the individual did not really have much of a case because the conduct complained of was not severe or harsh enough to cause actual emotional distress. It may seem insensitive, but unfortunately, the law will not compensate an individual because he perceived someone being mean to him.

Until a few years ago, a claim for harassment had to be framed as a claim for infliction of mental distress in order to be successful. However, earlier this year, the decision of the Ontario Superior Court of Justice in Merrifield v. Canada (Attorney General)formally recognized the tort of harassment as a separate and distinct cause of action in Ontario.

Tracing the development of the case law since 2011, the court reiterated the following requirements for a claim of harassment at paragraph 719:

Was the conduct of the defendant towards the plaintiff outrageous? In other words, the acts of harassment must be flagrant, wanton, extreme and insensitive.

Did the defendant intend to cause emotional stress or did they have a reckless disregard for causing the plaintiff to suffer emotional harm? The impact of the conduct must be known by the plaintiff to be substantially certain to follow.

Did the plaintiff suffer severe or extreme emotional distress? This does not require proof of a visible and provable illness, but rather emotional distress of such substantial quantity or enduring quality that no reasonable person in a civilized society should be expected to endure it.

Was the outrageous conduct of the defendant the actual and proximate cause of the emotional distress?

Interestingly, at paragraph 697, the court stated that to prove severe emotional distress, the plaintiff is not required to provide medical evidence. Although a clinical report setting out a DSM-V diagnosis of a disorder can be persuasive and powerful, it is not necessarily required to prove a claim of harassment.

The damages that may be awarded for this kind of claim can be substantial. In this case, the court awarded general damages for mental distress in the amount of $100,000.00 – despite the paucity of medical evidence. This is consistent with the damages awarded in Boucher v. Wal-mart Canada Corp., a case that I wrote about here a few years ago.

As I mentioned above, the law will not compensate an individual because he perceived someone being mean to him. However, this case serves as a cautionary tale for those who feel that they can do or say whatever they want, without regard for those to whom direct such acts.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

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